The State as 'Black Box' and the Market as Regulator: A Comment on Anne Van Aaken's 'Effectuating Public International Law Through Market Mechanisms'

Abstract

In the autumn of 2008, at a time of global reconsideration of the role of states in the regulation of markets, the paper uses the reflection on past experiences with the laissez faire state, the interventionist state, the welfare state and the enabling state as institutional crystallization points in an ongoing learning process of regulatory innovation as a framework to assess contemporary proposals to delegate public international law [PIL] enforcement to market actors. As such, the paper attempts to carve out possible conceptual and political implications of the current proposals against the background of interventionist and post-interventionist market regulation models. However, the translation of nation-state experiences with market regulation onto the global sphere presents a challenge in light of the particular structural qualities of transnational regulatory regimes. The task - both for a reconstructive narrative and for a delegation theory of PIL regulation through market actors - lies in the production of a better understanding of state-market and public-private distinctions in the transnational arena.